Lethal Injection the Latest Chapter in America's History of Botched Executions

(Photo: stevendepolo) The American correctional system has repeatedly sought to deploy our native ingenuity to devise the ultimate corrective: an engine of death that will dispose of our villains in a civilized manner. The quest, which goes on to this day as states refine the technique of lethal injections, has been fraught with disappointments.

Hanging was the traditional means of execution from the founding of the Republic, but it had the disadvantage that it often failed to break the neck. Sometimes, a charitable executioner would scramble underneath the gallows and pull down on the condemned person's feet until he heard the satisfying snap of breaking bone, but this measure to hasten death was never written into law, perhaps out of due respect for the sensitivity of executioners.

The 1880s were signature years for death, when two giants of the burgeoning electrical industry, Thomas Edison and George Westinghouse, independently conceived the idea of killing with electricity. Edison hired an inventor, Harold Brown, and his physician sidekick, Fred Peterson, to design an electric chair that ended up in New York's Auburn State Prison, where the first electrocution was carried out in 1890. The electric chair - or, less elegantly, the hot squat - supplanted hanging across most of the nation (Bellis M., "Death, Money and the History of the Electric Chair," About.com.Inventors) but it, too, had its downside. As late as 1984, when one might have had every reason to expect that the wrinkles had been ironed out, a witness to a Georgia electrocution ("Post-Furman Botched Executions") recorded that inmate Alpha Otis Stephens spent eight minutes struggling to breathe until a second jolt of electricity put him out of his misery. The way the warden explained away this bungled execution was to posit, "Stephens was just not a conductor." On the other hand, Florida inmate Jesse Joseph Tafero, class of 1990, must have been a superb conductor of electricity because his head burst into flames ("Post-Furman," Denno to Wilbur), a not infrequent conflagration.

With the gas chamber, adopted by a few states, you needn't worry about incinerating the prisoner, but a witness to the proceedings might get restless waiting for the cyanide-laden fumes to end the prisoner's cellular metabolism. Suffocation is not the most comfortable way to go, and some inmates like Jimmy Lee Gray (Mississippi, 1983) try to speed things along - in his case by smashing his head against an iron bar in the gas chamber. ("Post-Furman.")

Except for a few Western states that used the firing squad (or, in the case of Utah, which offered condemned inmates their choice of shooting or hanging), America dispatched its murderers and rapists with gas or electricity until 1982. In that year, a technician and a couple of guards executed Charles Brooks Jr. in Texas with a lethal injection conceived five years earlier by Oklahoma medical examiner A. Jay Carson MD. It must have seemed foolproof to its disciples, for it consists of an anesthetic (thiopental); a drug to paralyze the muscles, most pertinently those of breathing (pancuronium bromide); and another drug to stop the heart (potassium chloride). In fact, as Richard Dieter JD, executive director Death Penalty Information Center (DPIC), explained to Truthout, there are plenty of ways to botch a lethal-injection execution.

Dieter said that, in most states, executions are carried out by guards, who have received varying degrees of training in finding a vein and preparing solutions of the deadly chemicals. Intelligence coming into the DPIC concludes that finding a vein presents the greatest challenge to executioners ("Post-Furman Botched Executions," DPIC) - and to health professionals as well. Major medical centers have specialized technicians on their staffs, called hemophylists, who do nothing but draw blood and start intravenous solutions, which present uniquely difficult obstacles when the patient - or inmate - has wrecked his veins by shooting drugs. Now, imagine what can go wrong when this complex medical responsibility is delegated to a guard, who spends most of his days pacing the corridors twirling a truncheon. Compilations of botched executions ("Post-Furman Botched Executions," DPIC) are replete with cases of executioners sticking and stabbing for half an hour, an hour, two hours; they might even do a venous cutdown (remember, the prisoner is still awake), which means exactly what it says. In the infamous Romell Broom case (Ohio, 2007), the inmate lay sobbing on the death gurney while the guards worked fruitlessly over him until, finally, they allowed Broom to try to find a vein himself, without success. (Broom is not the only prisoner to assist in his own execution). The execution was, after two 1/2 hours, postponed for a week and at that time the killers were "successful."

Truthout also spoke with Deborah W. Denno JD, PhD, Arthur A. McGivney professor of law at Fordham University, who has been studying capital punishment for years as part of her ongoing interest in the constitutionality of execution methods. One of her studies concurs with Dieter that most executioners are just prison guards. Her research also suggests that the major problem with lethal injections comes about because the prisoner does not receive an adequate dose of thiopental.

The thiopental is followed by an injection of pancuronium bromide, which renders the prisoner a flaccid, speechless lump. Finally, comes the coup de grace - the injection of potassium chloride. This simple chemical causes excruciating pain as it flows through the circulatory system and spreads to the tissues, but with vocal cords paralyzed, the prisoner cannot cry out, so there is usually no indication that the prisoner is dying an agonizing death, though in some cases witnesses have reported seeing the prisoner's eyes open throughout the execution, or observing a grimace when the potassium chloride is injected. But, in general, we don't know how many executions are botched from inadequate anesthesia because few states perform an autopsy to measure the level of the chemicals in the tissues, or keep execution logs that might furnish a clue whether the prisoner was awake during his extermination (Denno to Wilbur). According to Dieter, some executioners simply ensure deep anesthesia by administering four or five times the usual dose of thiopental; as he pointed out, an execution is not a situation where anybody would worry about an overdose.

There have been several compilations of botched executions based on newspaper accounts and other reports of witnesses to executions, and these data support Dieter's impression that digging for a vein is the main cause of the condemned prisoner's suffering ("Post-Furman Botched Executions," DPIC). It's obvious, however, that botched executions due to inadequate thiopental would probably go undetected, so these compilations have limited value. What is more, Denno averred, they grossly underestimate the actual number of botched executions. She told of a study in California in which chemical analysis at autopsy found that in six out of eleven executed inmates, the level of thiopental in the body was inadequate to induce anesthesia. California's execution procedures were so execrable that a federal judge issued an injunction forbidding the state from carrying out any further executions until it cleans up its act. Though Judge Fogel's injunction was thrown out on appeal, California seems to have lost its stomach for executions, conceivably because it wants to avert further costly court challenges at a time when it is making deep cuts in social services.

These considerations imply that executions are more transparent than they actually are. Denno cautioned against making generalizations because, in most states, executions are shrouded in secrecy. Even literally so: the executioners do the work of strapping down the prisoner and inserting the needles - or trying to - behind a drape that separates them from the witnesses; when the drape is parted, the audience sees only the supine prisoner with long tubes running from his arm, or wherever the killers could find a vein, to a hole in the wall. The executioners are never seen and, in some states, there is no one to see them: there are no witnesses.

What does the man - or woman - in the street think about botched executions? A friend passed on some very interesting correspondence from a British newspaper, MailOnline.(1) Bigger Vern in London writes:

"What goes around, comes around. They deserve all the pain they get."

Trish, from Hemel Hempstead, writes:

"I THINK IT'S A DISGRACE NOT TO LET THEM DIE IN AGONY!"

In a softer vein, Sue from Suffolk speculates:

"If a vet can put a large dog to sleep gently and easily with 'Thio' then I think those in charge of administering the injection may be at fault with their technique. With animals a second injection isn't required - the animal just falls asleep and death occurs in seconds."

Sue from Suffolk raises the fundamental question: what constitutes an accomplished execution? To get an answer, Truthout spoke with Jerry Givens, former executioner of Virginia, the state which has a body count second only to Texas. According to Denno, Givens is so gifted in his former profession that, if she had to be executed, she would want him to do it. And with good reason: Givens plied his trade from 1982 to 1999, during which time he executed 37 men by electrocution and 25 men by lethal injection (Givens told me he might have had reservations about executing a woman). Oddly, Givens would not reveal the size of his team, but it certainly sounded like an efficient operation. Asked whether he had ever screwed up an execution: "Never," he said firmly. Asked why he was so successful in his work, "Good training and professionalism," he shot back without a flicker of hesitation.

Givens responded to the question of how he got into performing executions:

"One of the guys asked me if I wanted to help out," he explained. It turned out that Given's daytime job had been that of a prison guard on death row. He apparently demonstrated a facility for "helping out," because the warden sent him down to Texas for training in electrocutions, and when Virginia adopted lethal injections, he went back to school. (I was particularly curious to know whether his professor was a medical professional, but Givens purported not to know the person's credentials.)

Pressed to tell why he thinks there are so many reports of bungled lethal injections; was it the veins or the drugs? Givens, again, purported not to know, insisting that he only "worked the chemicals." He mixed the drugs according to the instructions in the manual that spells out Virginia's execution protocol and filled three big syringes that hung from the wall in a room adjacent to the execution chamber. The syringes converged on two long tubes which led through the hole in the wall to the prisoner; one tube would deliver the chemicals, the other was intended for backup in case the first got plugged up or developed a kink. When a colleague told Givens that the tubes were in place, he would, upon a signal from the warden, begin to depress the plungers on the syringes, one by one. Thiopental. Pancuronium bromide. Potassium chloride. When the third syringe was empty, a doctor "pronounced" the deceased, and his family, if he had any, got to keep the body. Givens denied that the physician played any role in the execution, other than to pronounce the prisoner dead.

Givens told Truthout that he had to prep his brain before he carried out an execution; as he expressed it, "you have to transform yourself." As if he were still in the business, he said, "I'm not myself when I'm getting ready for an execution." But whoever he was, he insisted that he "didn't have hatred in my heart, but hatred for the crime."

Givens' career as an avenging angel came to an end when he was convicted of perjury and money laundering in a scam with an old friend - a drug dealer. He served 58 weeks in prison and, these days, drives a truck for a living.

Givens is now a vehement opponent of capital punishment and an ardent spokesman for rehabilitation over incarceration. He is politically liberal and Professor Denno told Truthout that he is deeply religious, but keeps his religious faith to himself.

There are enough data - which Denno and Dieter regard as only the tip of the iceberg- to warrant the conclusion that there are plenty of executioners out there who lack good training or professionalism. Now, many states are exacerbating the misery of condemned men and women by using drugs of dubious quality. The situation began in 2009 when the sole American manufacturer of thiopental, Hospira, a small, generic drug company outside of Chicago, announced that it was running out of a chemical precursor of thiopental and that it could not obtain more. First, the states turned to England and, specifically, a tiny company in London called Dream Pharma, which operates out of a driving school. Their thiopental was used to execute two men in Georgia in 2010 and both are thought to have died in agony because the anesthetic failed to knock them out, either because the drug was so old that it had lost its potency or that it was manufactured under substandard conditions in the first place, but whatever the reason, the Supreme Court by a vote of 5-4 would not halt its use to execute Jeffrey T. Landrigan in Arizona, ruling that "there is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe." Never mind that the issue is effectiveness, not safety: Landrigan was duly put to death, and at least four states are believed to have acquired thiopental from Dream Pharma before Great Britain and the member countries of the European Union forbade drug companies from selling drugs to American prisons for purposes of execution. Not to be deterred, enterprising states have procured thiopental from India, Mumbai, and possibly other countries that are not noted for the caliber of their pharmaceutical industries. In general, the courts have been indifferent to the source of drugs for purposes of execution.

As far back as the 1890s, defense lawyers have been trying to persuade the courts that capital punishment constitutes cruel and unusual punishment under the Eighth Amendment, and one argument that they have used is that executions are often botched. In 2008, they tried yet again, challenging the three-drug protocol.

The Supreme Court rejected their argument by a dismaying 7-2. Addressing the issue of botched executions, Roberts wrote that "just because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual.'" Recently, lawyers pitched a different argument to the Supreme Court, claiming that states which import drugs from abroad are breaking the law by using substances that have not been approved by the Food and Drug Administration (FDA). In the unlikely event that the court buys this argument, the FDA could find itself in the bizarre position of deciding whether a foreign-made drug is safe and effective for killing people. Unfortunately, the states have an easy way out: switching to phenobarbital, a drug that's already on the American market - and phenobarbital, which is available for intravenous injection and has several medical applications - can be used for any purpose, even state-sanctioned murder.

The attorneys Truthout interviewed are not holding their breath for the Supreme Court to overturn capital punishment any time soon. Litigation is important, however, because it keeps the issue timely and sometimes even saves lives. In recent years, several lower court judges have frozen executions because their respective jurisdictions have a record for botching them, as in California, and the issue of botched executions gives activists useful leverage in lobbying state legislators to support abolition. Some states are displaying an interest in replacing capital punishment with life without parole, and in the past couple of years, New Jersey, Illinois and Connecticut have abolished the death penalty while five more states are considering it. It would be difficult to imagine a means of execution that would offend the sensibilities of the chief justice and his conservative colleagues. But executions are getting expensive, owing to multiple levels of appeal and court requirements for sophisticated execution chambers, so maybe Justices Roberts, Alito, Scalia, Thomas and Kennedy will take a tip from a listener to ABC News(2) and to hell with botched executions: "I think we should go back to hanging. It does not cost much for that, just a good rope."

Footnotes:

1. Rose D., "Prisoners' agony in botched executions with British drug," MailOnline. Several dates on cover sheet, try 20 February 2011 or 22 January 2012.

Robert Wilbur did research in biological psychiatry for many years. He also writes for popular magazines and newsletters. He is active in progressive politics, especially opposition to the Middle East wars and capital punishment, and fighting for animal rights.

Lethal Injection the Latest Chapter in America's History of Botched Executions

(Photo: stevendepolo) The American correctional system has repeatedly sought to deploy our native ingenuity to devise the ultimate corrective: an engine of death that will dispose of our villains in a civilized manner. The quest, which goes on to this day as states refine the technique of lethal injections, has been fraught with disappointments.

Hanging was the traditional means of execution from the founding of the Republic, but it had the disadvantage that it often failed to break the neck. Sometimes, a charitable executioner would scramble underneath the gallows and pull down on the condemned person's feet until he heard the satisfying snap of breaking bone, but this measure to hasten death was never written into law, perhaps out of due respect for the sensitivity of executioners.

The 1880s were signature years for death, when two giants of the burgeoning electrical industry, Thomas Edison and George Westinghouse, independently conceived the idea of killing with electricity. Edison hired an inventor, Harold Brown, and his physician sidekick, Fred Peterson, to design an electric chair that ended up in New York's Auburn State Prison, where the first electrocution was carried out in 1890. The electric chair - or, less elegantly, the hot squat - supplanted hanging across most of the nation (Bellis M., "Death, Money and the History of the Electric Chair," About.com.Inventors) but it, too, had its downside. As late as 1984, when one might have had every reason to expect that the wrinkles had been ironed out, a witness to a Georgia electrocution ("Post-Furman Botched Executions") recorded that inmate Alpha Otis Stephens spent eight minutes struggling to breathe until a second jolt of electricity put him out of his misery. The way the warden explained away this bungled execution was to posit, "Stephens was just not a conductor." On the other hand, Florida inmate Jesse Joseph Tafero, class of 1990, must have been a superb conductor of electricity because his head burst into flames ("Post-Furman," Denno to Wilbur), a not infrequent conflagration.

With the gas chamber, adopted by a few states, you needn't worry about incinerating the prisoner, but a witness to the proceedings might get restless waiting for the cyanide-laden fumes to end the prisoner's cellular metabolism. Suffocation is not the most comfortable way to go, and some inmates like Jimmy Lee Gray (Mississippi, 1983) try to speed things along - in his case by smashing his head against an iron bar in the gas chamber. ("Post-Furman.")

Except for a few Western states that used the firing squad (or, in the case of Utah, which offered condemned inmates their choice of shooting or hanging), America dispatched its murderers and rapists with gas or electricity until 1982. In that year, a technician and a couple of guards executed Charles Brooks Jr. in Texas with a lethal injection conceived five years earlier by Oklahoma medical examiner A. Jay Carson MD. It must have seemed foolproof to its disciples, for it consists of an anesthetic (thiopental); a drug to paralyze the muscles, most pertinently those of breathing (pancuronium bromide); and another drug to stop the heart (potassium chloride). In fact, as Richard Dieter JD, executive director Death Penalty Information Center (DPIC), explained to Truthout, there are plenty of ways to botch a lethal-injection execution.

Dieter said that, in most states, executions are carried out by guards, who have received varying degrees of training in finding a vein and preparing solutions of the deadly chemicals. Intelligence coming into the DPIC concludes that finding a vein presents the greatest challenge to executioners ("Post-Furman Botched Executions," DPIC) - and to health professionals as well. Major medical centers have specialized technicians on their staffs, called hemophylists, who do nothing but draw blood and start intravenous solutions, which present uniquely difficult obstacles when the patient - or inmate - has wrecked his veins by shooting drugs. Now, imagine what can go wrong when this complex medical responsibility is delegated to a guard, who spends most of his days pacing the corridors twirling a truncheon. Compilations of botched executions ("Post-Furman Botched Executions," DPIC) are replete with cases of executioners sticking and stabbing for half an hour, an hour, two hours; they might even do a venous cutdown (remember, the prisoner is still awake), which means exactly what it says. In the infamous Romell Broom case (Ohio, 2007), the inmate lay sobbing on the death gurney while the guards worked fruitlessly over him until, finally, they allowed Broom to try to find a vein himself, without success. (Broom is not the only prisoner to assist in his own execution). The execution was, after two 1/2 hours, postponed for a week and at that time the killers were "successful."

Truthout also spoke with Deborah W. Denno JD, PhD, Arthur A. McGivney professor of law at Fordham University, who has been studying capital punishment for years as part of her ongoing interest in the constitutionality of execution methods. One of her studies concurs with Dieter that most executioners are just prison guards. Her research also suggests that the major problem with lethal injections comes about because the prisoner does not receive an adequate dose of thiopental.

The thiopental is followed by an injection of pancuronium bromide, which renders the prisoner a flaccid, speechless lump. Finally, comes the coup de grace - the injection of potassium chloride. This simple chemical causes excruciating pain as it flows through the circulatory system and spreads to the tissues, but with vocal cords paralyzed, the prisoner cannot cry out, so there is usually no indication that the prisoner is dying an agonizing death, though in some cases witnesses have reported seeing the prisoner's eyes open throughout the execution, or observing a grimace when the potassium chloride is injected. But, in general, we don't know how many executions are botched from inadequate anesthesia because few states perform an autopsy to measure the level of the chemicals in the tissues, or keep execution logs that might furnish a clue whether the prisoner was awake during his extermination (Denno to Wilbur). According to Dieter, some executioners simply ensure deep anesthesia by administering four or five times the usual dose of thiopental; as he pointed out, an execution is not a situation where anybody would worry about an overdose.

There have been several compilations of botched executions based on newspaper accounts and other reports of witnesses to executions, and these data support Dieter's impression that digging for a vein is the main cause of the condemned prisoner's suffering ("Post-Furman Botched Executions," DPIC). It's obvious, however, that botched executions due to inadequate thiopental would probably go undetected, so these compilations have limited value. What is more, Denno averred, they grossly underestimate the actual number of botched executions. She told of a study in California in which chemical analysis at autopsy found that in six out of eleven executed inmates, the level of thiopental in the body was inadequate to induce anesthesia. California's execution procedures were so execrable that a federal judge issued an injunction forbidding the state from carrying out any further executions until it cleans up its act. Though Judge Fogel's injunction was thrown out on appeal, California seems to have lost its stomach for executions, conceivably because it wants to avert further costly court challenges at a time when it is making deep cuts in social services.

These considerations imply that executions are more transparent than they actually are. Denno cautioned against making generalizations because, in most states, executions are shrouded in secrecy. Even literally so: the executioners do the work of strapping down the prisoner and inserting the needles - or trying to - behind a drape that separates them from the witnesses; when the drape is parted, the audience sees only the supine prisoner with long tubes running from his arm, or wherever the killers could find a vein, to a hole in the wall. The executioners are never seen and, in some states, there is no one to see them: there are no witnesses.

What does the man - or woman - in the street think about botched executions? A friend passed on some very interesting correspondence from a British newspaper, MailOnline.(1) Bigger Vern in London writes:

"What goes around, comes around. They deserve all the pain they get."

Trish, from Hemel Hempstead, writes:

"I THINK IT'S A DISGRACE NOT TO LET THEM DIE IN AGONY!"

In a softer vein, Sue from Suffolk speculates:

"If a vet can put a large dog to sleep gently and easily with 'Thio' then I think those in charge of administering the injection may be at fault with their technique. With animals a second injection isn't required - the animal just falls asleep and death occurs in seconds."

Sue from Suffolk raises the fundamental question: what constitutes an accomplished execution? To get an answer, Truthout spoke with Jerry Givens, former executioner of Virginia, the state which has a body count second only to Texas. According to Denno, Givens is so gifted in his former profession that, if she had to be executed, she would want him to do it. And with good reason: Givens plied his trade from 1982 to 1999, during which time he executed 37 men by electrocution and 25 men by lethal injection (Givens told me he might have had reservations about executing a woman). Oddly, Givens would not reveal the size of his team, but it certainly sounded like an efficient operation. Asked whether he had ever screwed up an execution: "Never," he said firmly. Asked why he was so successful in his work, "Good training and professionalism," he shot back without a flicker of hesitation.

Givens responded to the question of how he got into performing executions:

"One of the guys asked me if I wanted to help out," he explained. It turned out that Given's daytime job had been that of a prison guard on death row. He apparently demonstrated a facility for "helping out," because the warden sent him down to Texas for training in electrocutions, and when Virginia adopted lethal injections, he went back to school. (I was particularly curious to know whether his professor was a medical professional, but Givens purported not to know the person's credentials.)

Pressed to tell why he thinks there are so many reports of bungled lethal injections; was it the veins or the drugs? Givens, again, purported not to know, insisting that he only "worked the chemicals." He mixed the drugs according to the instructions in the manual that spells out Virginia's execution protocol and filled three big syringes that hung from the wall in a room adjacent to the execution chamber. The syringes converged on two long tubes which led through the hole in the wall to the prisoner; one tube would deliver the chemicals, the other was intended for backup in case the first got plugged up or developed a kink. When a colleague told Givens that the tubes were in place, he would, upon a signal from the warden, begin to depress the plungers on the syringes, one by one. Thiopental. Pancuronium bromide. Potassium chloride. When the third syringe was empty, a doctor "pronounced" the deceased, and his family, if he had any, got to keep the body. Givens denied that the physician played any role in the execution, other than to pronounce the prisoner dead.

Givens told Truthout that he had to prep his brain before he carried out an execution; as he expressed it, "you have to transform yourself." As if he were still in the business, he said, "I'm not myself when I'm getting ready for an execution." But whoever he was, he insisted that he "didn't have hatred in my heart, but hatred for the crime."

Givens' career as an avenging angel came to an end when he was convicted of perjury and money laundering in a scam with an old friend - a drug dealer. He served 58 weeks in prison and, these days, drives a truck for a living.

Givens is now a vehement opponent of capital punishment and an ardent spokesman for rehabilitation over incarceration. He is politically liberal and Professor Denno told Truthout that he is deeply religious, but keeps his religious faith to himself.

There are enough data - which Denno and Dieter regard as only the tip of the iceberg- to warrant the conclusion that there are plenty of executioners out there who lack good training or professionalism. Now, many states are exacerbating the misery of condemned men and women by using drugs of dubious quality. The situation began in 2009 when the sole American manufacturer of thiopental, Hospira, a small, generic drug company outside of Chicago, announced that it was running out of a chemical precursor of thiopental and that it could not obtain more. First, the states turned to England and, specifically, a tiny company in London called Dream Pharma, which operates out of a driving school. Their thiopental was used to execute two men in Georgia in 2010 and both are thought to have died in agony because the anesthetic failed to knock them out, either because the drug was so old that it had lost its potency or that it was manufactured under substandard conditions in the first place, but whatever the reason, the Supreme Court by a vote of 5-4 would not halt its use to execute Jeffrey T. Landrigan in Arizona, ruling that "there is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe." Never mind that the issue is effectiveness, not safety: Landrigan was duly put to death, and at least four states are believed to have acquired thiopental from Dream Pharma before Great Britain and the member countries of the European Union forbade drug companies from selling drugs to American prisons for purposes of execution. Not to be deterred, enterprising states have procured thiopental from India, Mumbai, and possibly other countries that are not noted for the caliber of their pharmaceutical industries. In general, the courts have been indifferent to the source of drugs for purposes of execution.

As far back as the 1890s, defense lawyers have been trying to persuade the courts that capital punishment constitutes cruel and unusual punishment under the Eighth Amendment, and one argument that they have used is that executions are often botched. In 2008, they tried yet again, challenging the three-drug protocol.

The Supreme Court rejected their argument by a dismaying 7-2. Addressing the issue of botched executions, Roberts wrote that "just because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual.'" Recently, lawyers pitched a different argument to the Supreme Court, claiming that states which import drugs from abroad are breaking the law by using substances that have not been approved by the Food and Drug Administration (FDA). In the unlikely event that the court buys this argument, the FDA could find itself in the bizarre position of deciding whether a foreign-made drug is safe and effective for killing people. Unfortunately, the states have an easy way out: switching to phenobarbital, a drug that's already on the American market - and phenobarbital, which is available for intravenous injection and has several medical applications - can be used for any purpose, even state-sanctioned murder.

The attorneys Truthout interviewed are not holding their breath for the Supreme Court to overturn capital punishment any time soon. Litigation is important, however, because it keeps the issue timely and sometimes even saves lives. In recent years, several lower court judges have frozen executions because their respective jurisdictions have a record for botching them, as in California, and the issue of botched executions gives activists useful leverage in lobbying state legislators to support abolition. Some states are displaying an interest in replacing capital punishment with life without parole, and in the past couple of years, New Jersey, Illinois and Connecticut have abolished the death penalty while five more states are considering it. It would be difficult to imagine a means of execution that would offend the sensibilities of the chief justice and his conservative colleagues. But executions are getting expensive, owing to multiple levels of appeal and court requirements for sophisticated execution chambers, so maybe Justices Roberts, Alito, Scalia, Thomas and Kennedy will take a tip from a listener to ABC News(2) and to hell with botched executions: "I think we should go back to hanging. It does not cost much for that, just a good rope."

Footnotes:

1. Rose D., "Prisoners' agony in botched executions with British drug," MailOnline. Several dates on cover sheet, try 20 February 2011 or 22 January 2012.

Robert Wilbur did research in biological psychiatry for many years. He also writes for popular magazines and newsletters. He is active in progressive politics, especially opposition to the Middle East wars and capital punishment, and fighting for animal rights.